The US Supreme Court on Monday heard arguments in a landmark legal case that could redefine digital privacy rights for people across the United States.
The case, Chatrie v. United Statesfocuses on the government’s controversial use of so-called “geofence” search warrants. Law enforcement and federal agents use these warrants to compel tech companies like Google to hand over information about which of its billions of users were in a certain place and time based on their phone’s location.
By casting a wide net into a tech company’s troves of user location data, investigators can reverse engineer who was at a crime scene, essentially allowing police to track down suspected criminals akin to finding a needle in a digital haystack.
But civil liberties advocates have long argued that geobrowsing warrants are inherently overbroad and unconstitutional because they return information about people who are nearby but have nothing to do with an alleged incident. In several cases in recent years, geofence warrants have trapped innocent people who happened to be nearby and whose personal details were requested anyway, were wrongly filed to collect data far beyond their intended scope and used to identify people participating in protests or other lawful gatherings.
The use of geofence orders has grown in popularity among law enforcement circles over the past decade, with New York Times research finding the practice first used by federal agents in 2016. Every year since 2018, federal agencies and police departments across the US have filed thousands of geo-trafficking warrants, representing a significant percentage of legal demands received from tech companies like Google, which store vast banks of location data collected from user searches, maps and Android devices.
Chatrie is the first major Fourth Amendment case heard by the US supreme court this decade. The ruling could decide whether geo-attack warrants are legal. Much of the case hinges on whether people in the US have a “reasonable expectation” of privacy with respect to information collected by tech giants, such as location data.
It is not yet clear how the nine Supreme Court justices will vote – a decision is expected later this year – or whether the court will permanently order an end to the controversial practice. But arguments heard before the court on Monday provide some insight into how the justices might rule on the case.
“Search first and develop suspicions later“
The case centers on Okello Chatrie, a Virginia man convicted of robbing a bank in 2019. Police at the time saw a suspect on the bank’s security footage talking on a cell phone. Investigators then issued a “geofence” search warrant to Google, requiring the company to provide information on all phones within a short radius of the bank and within an hour of the robbery.
In practice, law enforcement is able to draw a shape on a map around a crime scene or other important place and require searching large amounts of location data from Google’s databases to locate anyone who was there at a given time.
In response to the geo-protection warrant, Google provided bundles of anonymized location data belonging to its account holders who were in the area at the time of the robbery, and investigators then requested more information about some of the accounts that were near the bank for several hours before the robbery.
Police then obtained the names and related information of three account holders – one of whom they identified as Chatrie.
Chatrie eventually pleaded guilty and was sentenced to more than 11 years in prison. But as his case progressed through the courts, his legal team argued that evidence obtained through the geographic crime warrant, which allegedly linked him to the crime scene, should not have been used.
A key point in Chatrie’s case invokes an argument that privacy advocates have often used to justify the unconstitutionality of geo-breaching orders.
The geographic crime warrant “allowed the government to search first and develop suspicions later,” they argue, adding that it runs afoul of longstanding Fourth Amendment principles that set up guardrails to protect against unreasonable searches and seizures, including of people’s data.
As a SCOTUSblog Supreme Court watch site points outone of the lower courts agreed that the geofence warrant had not established the requisite “probable cause” linking Chatrie to the bank robbery that warranted the geofence warrant in the first place.
It argued that the warrant was too general because it did not describe the specific account that contained the data investigators were looking for.
However, the court allowed the evidence to be used in the case against Chatrie because it determined that law enforcement acted in good faith in obtaining the warrant.
According to a blog post by civil liberties attorney Jennifer Stisa Granick, an amicus brief filed by an alliance of security researchers and technologists presented the court with the “most interesting and important” argument to help in its final decision. The brief argues that this geo-breach warrant in Chatrie’s case was unconstitutional because it ordered Google to actively search the data stored in the individual accounts of hundreds of millions of Google users for information sought by the police, a practice inconsistent with the Fourth Amendment.
The government, however, largely argued that Chatrie “affirmatively chose to allow Google to collect, store and use” his location data and that the warrant “simply directs Google to locate and turn over the necessary information.” U.S. Solicitor General D. John Sauer, arguing for the government before Monday’s hearing, said Chatrie’s arguments appeared to imply that no geo-attack warrant, of any kind, could ever be executed.
After a division of court on appeal. Chatrie’s lawyers asked the US Supreme Court to take up the case to decide whether geo-breaching warrants are constitutional.
Justices appear mixed after hearing arguments
While the case is unlikely to affect Chatri’s sentence, the Supreme Court’s decision could have broader implications for Americans’ privacy.
After lively oral arguments between Chhatri’s lawyers and the US government in Washington on Monday, the court’s nine justices appeared largely divided on whether to ban the use of geo-attack orders altogether, although the justices may find a way to limit how the warrants are used.
Orin Kerr, a law professor at the University of California, Berkeley whose expertise includes Fourth Amendment law, told the a lengthy social media post that the court was “likely to reject” Chatrie’s arguments about the legality of the warrant and would likely allow law enforcement to continue using geo-trespass warrants as long as they are limited in scope.
Cathy Gellis, a lawyer who writes at Techdirt, said in a post that it appears the court “likes geographic infringement warrants, but may be hesitant to get rid of them entirely.” Gellis’ analysis predicted “baby steps, not big rules” in the court’s final decision.
Although the case is largely focused on Google’s location database search, the implications reach far beyond Google, but for any company that collects and stores location data. Google eventually moved to store its users’ location data on their devices rather than on its servers where law enforcement could request it. The company stopped responding to geofence warrant requests last year as a result, according to the New York Times.
The same cannot be said for other tech companies that store their customers’ location data on their servers and within arm’s reach of law enforcement. Microsoft, Yahoo, Uber, Snap and others have received geo-protection orders in the past.
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